Watts, R (on the application of) v Bedford Primary Care Trust & Ors

Article 49 of the EC Treaty applies to NHS patients seeking reimbursement for medical treatment obtained in another Member State. Prior authorisation is a restriction on the freedom to provide services and must be objectively justified and proportionate.

Authorisation may be refused only where the same or equally effective treatment is available in the NHS without undue delay. The assessment must consider all the circumstances, including the patient’s medical condition, pain, disability and medical history. NHS waiting times are relevant but cannot be determinative.

Article 22 of Regulation 1408/71 is a separate provision with a different and more demanding test, centred on the time normally necessary to obtain treatment in the Member State of residence.

The claimant required hip replacement surgery and challenged decisions by Bedford Primary Care Trust refusing to support treatment abroad under Form E112. She had been facing approximately a year’s wait for surgery, but was later reclassified as a “soon” case with surgery expected within three or four months.

She relied on Article 49 of the EC Treaty, Article 22 of Regulation 1408/71, and Articles 3 and 8 of the European Convention. The court considered whether NHS arrangements unlawfully restricted access to treatment in another Member State, whether the delay was undue, and whether the claimant was entitled to reimbursement.

1. Article 49. Medical and hospital treatment are services within Articles 49 and 50. Article 49 applies even where treatment is provided free under the NHS and reimbursement is sought from the national budget. Article 22 does not exclude the separate operation of Article 49.
2. A prior-authorisation scheme restricts the freedom to provide services because it denies reimbursement for treatment abroad where authorisation has not been obtained, while domestic treatment is not subject to the same restriction. Such a restriction may be justified only by objectively necessary and proportionate measures designed to maintain an adequate, balanced and permanent supply of high-quality services or to protect the financial stability of the NHS.
3. The decisive question is whether the same or equally effective treatment can be obtained without undue delay. All the circumstances must be considered, including the patient’s medical condition, pain, disability and medical history. Waiting times may be relevant, but a national target or ordinary waiting list cannot determine the issue. A refusal based solely on waiting lists, without individual consideration, is unlawful.
4. The first decision was based on the erroneous view that Article 49 was governed by Article 22 and that undue delay was determined by NHS waiting-time targets. The claimant would otherwise have been entitled to relief. However, by the second decision she had been reclassified as a soon case and was expected to receive treatment within three or four months. That delay was not undue in the circumstances.
5. Any authorisation scheme must use objective, non-discriminatory criteria known in advance, operate through an accessible and impartial procedure within a reasonable time, and permit refusals to be challenged judicially or quasi-judicially. The Department’s published materials failed to provide an easily accessible procedural system.
6. Article 22 is distinct from Article 49. It permits refusal unless treatment cannot be provided within the time normally necessary in the Member State of residence, taking account of the patient’s current health and the probable course of the disease. Waiting times therefore have central significance under Article 22. The claimant failed under that provision.
7. Domestic law and Articles 3 and 8 of the Convention provided no effective basis for relief. The substantive claims were dismissed, with the possibility of further argument on declaratory relief.

First-instance judicial review proceedings in the Administrative Court. The claimant’s substantive claims were dismissed.